India has approached the
International Court of Justice seeking
to stay the execution of Kulbhushan Jadhav. India has raised its claims before
the court under Article 36 of the Vienna Convention on Consular Relations,
which grants the right of consular access to a foreign national “who is in prison,
custody or detention” and the optional protocol to the VCCR, which establishes
the ICJ as the venue for resolving disputes under the VCCR. To raise its
claims, India has relied upon the court’s compromissory jurisdiction under
Article 36(1) of the statute of the ICJ which allows the latter to exercise its
jurisdiction on the basis of a ‘special agreement’ — in this case the optional
protocol.
The
court’s jurisdiction in such cases is, however, limited solely to the
interpretation or application of the special agreement. The court cannot decide
on matters beyond the scope of the concerned treaty, and as Article 36 of the
VCCR only deals with communication and contact with nationals of the sending
state it does not impact convictions for espionage under domestic or
international law at all. Further, Pakistan is a dualist state, wherein any
international treaty signed can only be given effect domestically once it has
been codified in the corpus of domestic laws through implementing legislation.
Consular access has not been a right explicitly guaranteed under the Diplomatic
and Consular Privileges Act, 1972.
Further,
India’s claims rely upon a peacetime conception of international law, wherein
consular officials are guaranteed access to “nationals of the sending state”
tried or convicted of ordinary criminal offences. In Jadhav’s case, however,
this legal framework seems inapplicable — as a spy he engaged in activities
including fomenting insurgency and attempting to destabilise southwestern
Pakistan. His activities would fall within the purview of International
Humanitarian Law, the lex specialis or specific law governing the conduct of
hostilities between nations.
Pakistan
is well within its rights to try and sentence Jadhav under its domestic laws
for espionage.
The
Geneva Conventions provide much of the substance of IHL. Within this framework
the Geneva Convention IV of 1949 is of particular significance, and relates to
the treatment of non-combatants in times of hostilities. As per Article 5
thereof, when such a non-combatant is detained as a spy he forfeits his rights
of communication under the convention. While such a person must, as per Article
5, be treated with humanity and has the right to a fair trial, there is nothing
under IHL which prevents an individual from being sentenced to death for
espionage.
IHL
also draws a clear distinction between those engaged in hostilities and those
engaged in espionage. This principle is enshrined in Additional Protocol I (AP
I) to the Geneva Conventions, reflecting a long-established principle of
international law present in earlier international legal instruments.
Combatants who adhere to IHL principles are, if captured, immune from
prosecution for acts committed while engaging in hostilities. This, however,
does not apply to those engaged in espionage: as per Article 46(1) of AP I any
member of the armed forces of a party to the conflict who falls into the power
of the other party while engaging in espionage shall not have the right to the
status of prisoner of war and may be treated as a spy. Instead, the
requirements under Article 75 of AP I are for humane treatment and a fair
trial. In this light, therefore, Pakistan is well within its rights to try and
sentence Jadhav under its domestic laws for committing espionage.
While Jadhav’s activities
were hostile acts, inimical to Pakistan’s national security and
stability, even if one were to assume that the peacetime regime of
international law applied, India’s claims before the ICJ would remain
problematic. India’s declaration to the compulsory jurisdiction of the ICJ
under Article 36(2) of the ICJ statute ousts the jurisdiction of the court on matters
relating to actions taken in self-defence or in resistance to aggression.
As
per the well-established international law principle of reciprocity, the
caveats India incorporated into its own declaration are also exercisable by
Pakistan. The court will thus have to determine whether exercising
compromissory jurisdiction would result in a de facto exercise of compulsory
jurisdiction in areas over which it lacks jurisdiction. The dispute revolves
around the actions of Jadhav, an individual tried and sentenced by a competent
court as a spy and saboteur, and thus necessarily falls within the purview of
“actions taken in self-defence or in resistance to aggression”.
Furthermore,
even if the court decides that it has jurisdiction in this case it is highly
unlikely it will establish admissibility as all local remedies have not yet
been exhausted; even if the case reaches the merits — and India is successful —
a determination of a violation of consular access still has no bearing on the
illegality of Jadhav’s actions or the nature of his awarded punishment as such
are beyond the scope of the VCCR.
Jadhav’s
situation, while peculiar, is not entirely without precedent. In Medellin v.
Texas the accused was a Mexican national tried and sentenced to death by the
courts of Texas, despite Mexico being denied consular access to him. Following
his appeal, the US Supreme Court — upholding Medellin’s sentence — held that
even if a treaty constitutes an international obligation it is not binding
under domestic law unless the treaty is self-executing or the legislature
enacts the necessary implementing legislation.
The
court also held that the ICJ’s decisions were nonbinding under domestic law and
that, without authority from the legislature or the constitution, the head of
state could not unilaterally enforce international treaties or ICJ decisions.
While proceedings were under way before US domestic courts, Mexico moved the
ICJ on much the same grounds as India has —ie denial of consular access to the
accused. And while the ICJ finally held in favour of Mexico, the courts of the
US nonetheless asserted the supremacy of domestic law over the pronouncements
of the ICJ and the VCCR.
Sikander Ahmed Shah is former
legal adviser, Ministry of Foreign Affairs, and law faculty at Lums. Abid Rizvi is
an expert on international law.
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